Before SEYMOUR and HENRY, Circuit Judges, and
OBERDORFER, District
Judge.(**)

Metroplex Corporation ("Metroplex") appeals various portions of two
summary

judgment orders in its suit against Thompson Industries, Inc. ("Thompson"). In 1996,
Thompson contracted with Metroplex to provide railroad ties for a rail line construction
project Metroplex had undertaken for the U.S. Army. Metroplex subsequently
determined that many of the ties were defective, prompting it to bring common-law
contract and tort claims against Thompson. The district court resolved various issues
through separate orders, largely in Thompson's favor. The parties ultimately settled the
case. This appeal presents four issues peripheral to that settlement: whether the district
court erroneously (1) interpreted the contract to preclude Metroplex from recovering
attorneys' fees incurred in this action; 2) denied Metroplex a jury trial on its punitive
damages claims; 3) sanctioned Metroplex's counsel for writing a complaining letter to
the court about certain proceedings; and 4) in a cross-appeal filed by Thompson, found
the name of a witness identified on a Metroplex document to be protected by the
attorney-client privilege and thus properly redacted. We conclude that the district court
did not err and we affirm its disposition of all four of these peripheral issues.

I. By way of background, the pleadings that serve as
the basis of the substantive

settlement yield the following undisputed facts: Metroplex builds, repairs and
refurbishes railroad systems and related equipment. Thompson is a merchant and
distributor of wood products, including railroad ties used for the building, repair, and
rehabilitation of railroad systems. Metroplex contracted with the United States Army to
build and repair railroad track at the Tooele Army Depot in Tooele, Utah. That contract,
entered into on August 29, 1996, required Metroplex to complete the project by May 30,
1998, consistent with various specifications regarding the materials. The contract
provisions were subject to interpretation under Pennsylvania law. On December 13,
1996, Metroplex contracted to purchase from Thompson approximately 51,000 cross-ties
and switches for use in building and repairing the tracks at Tooele.

According to Metroplex, the railroad ties delivered by Thompson pursuant to the
contract were nonconforming and defective in that they were the wrong species of wood
and were improperly treated, hampering the railroad construction process and generating
extra costs. Accordingly, on March 27, 1998, Metroplex sued Thompson in the Western
District of Pennsylvania, alleging breach of contract, fraud, breach of express and
implied warranties, and negligence. Metroplex sought punitive damages on the theory
that Thompson's alleged misconduct was deliberate, or at least reckless. The case was
subsequently transferred to the District of Utah, a more convenient forum. There
Thompson counter-claimed against Metroplex and filed third-party complaints against
Western Railroad Builders and its rail-tie inspector, A.W. Williams Inspection Company.
Metroplex also sued A.W. Williams for breach of contract under a third-party beneficiary
theory and for negligence.(1) The parties
ultimately resolved their substantive dispute,
formalizing their settlement in a consent judgment which the district court entered on
November 22, 2000. Under the terms of the consent judgment, Thompson agreed to pay
Metroplex $254,000, although Thompson made no concession of liability. Both parties
reserved the right, notwithstanding settlement, to pursue issues relating to punitive
damages, lost profits, attorneys' fees, and any discovery and evidentiary issues. Prior to
the entry of the consent judgment the district court entered two orders on February 24,
2000 and September 26, 2000, each of which generated two of the issues now before us
on appeal.

First, the February 24 order determined that the contract did not obligate
Thompson to pay attorneys' fees incurred by Metroplex in prosecution of this litigation.
See II.A, infra. The February 24, 2000 order also denied Thompson's motion to
compel
Metroplex to disclose the names of certain individuals identified on, but redacted from,
handwritten notes made by a Metroplex employee, Robert Bashioum. Bashioum had
taken the notes while discussing the case with a Metroplex attorney. The district court
ruled that the redacted portion of the notes was protected by the attorney-client privilege,
because the employee took them in the course of obtaining legal advice. Thompson has
cross-appealed on this issue. See II.D, infra.

On September 26, 2000, the district court entered the second order involved in
this appeal, a denial of Metroplex's claim for punitive damages. Thompson had filed a
"motion for directions on punitive damages and speculative damages or in the alternative
for partial summary judgment," claiming that it could not be held liable for punitive
damages. The district court treated the motion as one for summary judgment and
concluded that Thompson could not be made to pay punitive damages to Metroplex. The
court essentially held that this was a "simple contract case," in which punitive damages
are not available. Metroplex raises this foreclosure of punitive damages as the third issue
on appeal. See II.B, infra.

The fourth issue on appeal, also arising from the district court's September 26
order, relates to the events surrounding the disposition of Metroplex's punitive damages
claim. On June 15, 2000, after a hearing on Thompson's damages motion, Metroplex's
attorney, Dan Hull, wrote a letter to the district court complaining about the manner in
which the damages issue had developed. Thompson objected to the letter and filed a
motion for sanctions. The September 26 order granted the motion for sanctions.

On September 28, 2000, the parties entered into a settlement agreement that
Metroplex claims expressly permits appeal of the district court's orders of February 24
and September 26. Metroplex filed its notice of appeal on October 24, 2000, before any
final judgment was entered in the case. On November 20, 2000, Thompson moved to
dismiss Metroplex's appeal on the ground that the district court's two orders were not
final and appealable and had not been certified as such pursuant to Federal Rule of Civil
Procedure 54(b). The consent judgment, incorporating the September 28 settlement
agreement, was entered two days later, on November 22, 2000, and signed by the district
court. Metroplex claims the two orders that it seeks to appeal were made final and
appealable by virtue of this consent judgment, as it brought to an end all pending claims
involved in the litigation. Federal Rule of Appellate Procedure 4(a)(2) provides that a
notice of appeal filed after disposition of the case but prior to the entry of judgment "is
treated as filed on the date of and after the entry" of judgment. Fed. R. App. P. 4(a)(2).
Jurisdiction therefore exists to hear and resolve this appeal.II.

A. Recovery of Attorneys' Fees The focus of the dispute over whether the
contract between Metroplex and
Thompson provided for Metroplex's recovery of attorneys' fees arising from this lawsuit
is Paragraph 11 of the Terms and Conditions of the Purchase Order, the relevant portion
of which provides:

Responsibility and Indemnification. By its acceptance of this Purchase Order,
Seller [Thompson] agrees it will hold and save harmless Buyer [Metroplex]
(and/or any of its affiliated companies) of and from any and all liability, loss,
damages, costs and expenses (including attorney's fees), claims, suits and
demands and from damage to property or injuries, including death to persons
sustained by Buyer, its employees or its customers, or by Seller or its employees,
or by any other party, arising out of the performance of any work or the furnishing
of any item or material by Supplier [Thompson] under this order. Seller further
expressly agrees that it is the intent hereof that Seller shall assume all risk of such
loss, damage or injury, and shall save harmless Buyer from any judgment,
liability, or expense arising out of any law suit brought by a third party on any
cause of action in any way arising out of or related to the above said performance
of work or furnishing of any item or material. . . . Seller further agrees at its own
expense, to defend any suit or action against buyer or user of the material covered
by the purchase order for alleged patent infringement arising from the sale or use
of said material, and to indemnify and save Buyer harmless from any loss,
liability, cost and expenses (including attorney's fees) in connection with any such
suit or action.

(emphasis added). The parties filed cross-motions for summary judgment on whether
this language permitted Metroplex to recover attorneys' fees arising out of the present
litigation. In granting summary judgment to Thompson, the district court concluded that
the contract unambiguously precluded Metroplex's recovery of attorneys' fees for this
case. We review the district court's summary judgment order de novo. SeeApplied
Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238 (10th Cir.
1990).

The district court recognized that the first sentence of the contract provision was
ambiguous when considered in isolation, in that it could reasonably be interpreted as
either an indemnification clause limiting Metroplex's recovery of attorneys' fees to third-party
lawsuits or a provision covering any losses sustained by Metroplex as a result of the
delivery of nonconforming goods, including attorneys' fees. In light of this "alleged
ambiguity," the court "resort[ed] to a second level of contract interpretation, looking at
the first sentence in context of the four corners of the document." 2/24/00 Order at 6.
Applying this method, the court concluded that "the language of the entire contract is
clear and unambiguous, and it is unnecessary to look to any extrinsic evidence." 2/24/00
Order at 7 (citing First Home Savs. Bank, FSB v. Nernberg, 648 A.2d 9, 14 (Pa. Super.
1994) (stating that "when the language of a contract is clear and unequivocal, courts
interpret its meaning by its contents alone, within the four corners of the document"));
see alsoRESPA of Pa., Inc. v. Skillman, 768 A.2d 335, 340 (Pa. Super. 2001)
("When
the language of a contract is unambiguous, we must interpret its meaning solely from the
contents within its four corners, consistent with its plainly expressed intent.").

Specifically, the district court noted that the first two sentences of Paragraph 11
"used contractual indemnification language, 'hold and save harmless,' which leads one to
believe the entire paragraph is dealing with indemnification." 2/24/00 Order at 6. Also,
the court noted that the title of the paragraph "plainly states 'Responsibility and
Indemnification,'" indicating that the entire paragraph is an indemnification provision.
The district court concluded that the only reasonable interpretation of the contract was
that it unambiguously obligated Thompson to pay attorneys' fees to Metroplex only in
the context of third-party suits against Metroplex.

On appeal, Metroplex argues the contract is unambiguous and expressly provides
for the recovery of attorneys' fees in this action, based on the language in the first
sentence of Paragraph 11 that Thompson must pay for "any and all liability . . . arising
out of the performance of any work or the furnishing of any item or material by Supplier
under this order." Thompson counters that Paragraph 11 unambiguously applies only to
actions for indemnification.

Paragraph 11 does not provide unambiguous support for the recovery of attorneys'
fees. As Thompson points out, various aspects of Paragraph 11 support its argument that
the provision applies only to actions for indemnification. Not only is the paragraph
entitled "Responsibility and Indemnification," but the first, second, and last sentences use
the traditional indemnification language, "save and hold harmless Buyer." Use of the
word "further" in the second sentence implies that sentence is a continuation of the
previous one, and the second sentence clearly contemplates indemnification for third-party
claims ­ as indicated by the express reference to a lawsuit "brought by a third
party." The paragraph by its plain terms cannot be construed as a contract to pay
attorneys' fees in the event of a contract dispute between the buyer and the seller.

In the alternative, Metroplex contends that the language is ambiguous and creates
a material issue of fact. Therefore, the district court should have permitted the admission
of extrinsic evidence and submitted the matter to a jury. Metroplex's alternative
argument is unavailing in light of the American Rule on attorneys' fees. Pennsylvania
has adopted the American Rule, providing that no attorneys' fees are allowable or
awardable in the absence of a clear contractual provision, statute, or other applicable
exception. As stated by the Pennsylvania Supreme Court, "This Court has consistently
followed the general, American rule that there can be no recovery of attorneys' fees from
an adverse party, absent an express statutory authorization, a clear agreement by the
parties or some other established exception." Merlino v. Delaware County, 728 A.2d
949, 951 (Pa. 1999) (citing Chatham Communications, Inc. v. Gen. Press Corp., 344
A.2d 837, 842 (Pa. 1975)). Even assuming that Metroplex is correct and the phrase "any
and all liability" in the first sentence of Paragraph 11 encompasses attorneys' fees
resulting from litigation between the contracting parties, this language would conflict
with the indemnity language in the same paragraph and render the provision ambiguous.
Under the American Rule adopted by Pennsylvania's highest court, recovery of
attorneys' fees is prohibited as a matter of law in the absence of an unambiguous
contractual provision. Metroplex is not entitled to attorneys' fees.

Punitive Damages

Metroplex challenges the district court's partial summary judgment decision
denying its claim for punitive damages. The company's complaint alleged breach of
contract as well as tort claims of fraud and negligence.

Under Pennsylvania law, an injured party may recover punitive damages in tort.
See, e.g., Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990). "As a general
guide in
this area Pennsylvania recognizes the principles set forth in Section 908(2) of the
Restatement of Torts (Second): 'Punitive damages may be awarded for conduct that is
outrageous, because of the defendant's evil motive or his reckless indifference to the
rights of others. In assessing punitive damages, the trier of fact can properly consider the
character of the defendant's act, the nature and extent of the harm to the plaintiff that the
defendant caused or intended to cause and the wealth of the defendant.'" Martin v.
Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985) (quoting Rest. 2d (Torts) §
908(2)). Punitive damages are not awarded as a matter of course. "The imposition of
damages to punish a civil defendant is appropriate only where the conduct is egregious."
Field v. Philadelphia Elec. Co., 565 A.2d 1170, 1183 (Pa. Super. 1989). "Plaintiffs
must
show outrageous conduct by a preponderance of the evidence." Hughes v.
Consol-Pennsylvania Coal Co., 945 F.2d 594, 616 (3d Cir. 1991).

On March 24, 2000, the district court asked both defendants to file motions in the
nature of partial motions for summary judgment on the issue of whether the punitive
damages claim could be maintained in this lawsuit. The district court noted that under
Pennsylvania law "punitive damages are not available for a 'breach of mere contractual
duties.'" 9/26/00 Order at 8 (quoting Daniel Adams Assoc. v. Rimbach Publ'g Inc., 429
A.2d 726, 728 (Pa. Super. 1981)). Viewing the facts in the light most favorable to
Metroplex, the district court found "that as a matter of Pennsylvania law punitive
damages are not recoverable in this simple contract case." 9/26/00 Order at 9. In support
of this conclusion, the district court observed that Metroplex, upon receiving the
nonconforming rail ties, revoked its acceptance as permitted by Pennsylvania law. See
13 Pa. Cons. Stat. Ann. § 2-608 (providing that a buyer may revoke its acceptance if
the "acceptance was reasonably induced either by the difficulty of discovery before
acceptance or by assurances of the seller"). In addition, Metroplex's tort claims were, as
the district court found, resolved according to contract principlesthat
ultimately allowed
Metroplex to fulfill satisfactorily its contract with the Army. Established principles of
Pennsylvania law preclude award of punitive damages on a simple breach of contract
claim such is at issue here.

The court's ruling can be read as either a determination that Metroplex's action
was centrally one for breach of a contract, to which the pled tort claims were extraneous,
or an effective determination that Thompson's conduct was not sufficiently egregious to
warrant punitive damages. Metroplex contends, however, that the district court erred by
issuing an order that, if the case had proceeded to trial, would have allowed the jury to
consider its fraud and negligence claims but prevented the jury from considering its
corresponding punitive damages claims. Although the district court's decision to resolve
the punitive damages issue itself, rather than leaving the issue for a jury, is mildly
problematic, there is no reversible error here.

Pennsylvania law precludes the award of punitive damages unless and until a
plaintiff proves an underlying tort. "In this Commonwealth '[t]he right to punitive
damages is a mere incident to a cause of action--an element which the jury may consider
in making its determination--and not the subject of an action in itself.'" Feingold v.
Southeastern Pennsylvania Transp. Auth., 517 A.2d 1270, 1276 (Pa. 1986) (quoting
with
approvalHilbert v. Roth, 149 A.2d 648, 652 (Pa. 1959) (citations omitted)); see
also
Restatement (Second) of Torts, § 908, Comment c ("It is essential ... that facts be
established that, apart from punitive damages, are sufficient to maintain a cause of
action."). The district court correctly found that Pennsylvania law does not permit the
recovery of punitive damages in contract-related situations, and Metroplex's claims are
predominately contract-based. As the district court noted, the allegedly tortious conduct
by Thompson's employees, including knowingly falsified certificates of compliance for
non-conforming ties, were corrected through the parties' resort to "flexible contract
principles." 9/26/00 Order at 9-10. In light of Metroplex's successful use of contractual
remedies to ensure Thompson's performance under the contract, we do not disagree with
the district court's implicit conclusion that the tort claims pled by Metroplex were
superfluous to its action for breach of contract. Accordingly, we affirm the district
court's decision to deny the Metroplex punitive damages claim.

Sanctions for the "ex parte" letter

We review the district court's decision to levy sanctions pursuant to Fed. R. Civ.
P. 11 for abuse of discretion, seeCooter & Gell v. Hartmarx Corp., 496
U.S. 384, 405
(1990), and we affirm the district court's sanction of plaintiff's counsel for the letter to
chambers.

Following the June 6 hearing on the punitive damages issue, the Metroplex
attorney wrote a letter to the court on June 15, 2000 to express his dissatisfaction with the
court's handling of the issue. The letter was copied to counsel for Thompson and A.W.
Williams. Both defendants subsequently moved for sanctions on the basis of the letter,
which the district court granted.

The district court noted that the attorney's letter "clearly violated several local
rules and the Federal Rules of Civil Procedure," although it did not specify which rules
had been transgressed. 9/26/00 Order at 15. The district court ordered plaintiff's
counsel to "refrain from any further ex parte contact with the Court," assessed costs
incurred by Thompson in bringing the motion for sanctions, and struck the letter and its
exhibits. Id.

Metroplex claims the imposition of sanctions was in error. It argues that the letter
was not an ex parte communication, since all parties were copied on it; the district court
failed to cite any specific ethical violations; and the letter was compelled by the
possibility that the court would treat the damages motions as summary judgment motions.
Metroplex now describes the letter, post-hoc, as a "motion to reconsider."

Thompson argues that the letter was "offensive" and violated several rules in the
Utah Rules of Professional Conduct, including Rule 3.5(a), which prohibits a lawyer
from seeking to influence a judge by means prohibited by law, and Rule 3.4, which
requires fairness to opposing counsel.

While it would have been helpful for the district court to pinpoint the ethical rules
that serve as the basis for sanctions, the letter was undeniably inappropriate. Metroplex's
attorney should have taken the proper route of filing a formal motion for reconsideration,
rather than sending an ill-advised letter to chambers. The district court's ruling on this
issue was within its discretion, and the sanctions stand.

Attorney-Client Privilege

Thompson cross-appeals, seeking the disclosure of the identity of a potential
witness who made certain statements regarding Thompson's finances. At his deposition,
Robert Bashioum, senior project manager for Metroplex, refused to identify an
individual whose name had been redacted from his personal diary at the advice of
counsel. The notes were apparently made during a conversation between Bashioum and
counsel for Metroplex. The relevant portion states, "Summary of Thompson financial
investigation. Talked to ___ last night ­ Harry Scott erratic ­ Tony is trying to
leave the
___."

On January 3, 2000, a magistrate judge denied Thompson's motion to compel on
the basis of attorney client privilege. "In order to be covered by the attorney-client
privilege, the communication between a lawyer and client must relate to legal advice or
strategy sought by the client." United States v. Johnston, 146 F.3d 785, 794
(10th Cir.
1998). The magistrate judge concluded that Thompson had not established that the
redacted names were unrelated to the provision of legal advice or development of legal
strategy. The district court's February 24, 2000 order found that because the information
sought by Thompson arose during a meeting with Metroplex's attorney, it fell within the
attorney-client privilege.

It is not necessary to resolve this issue on appeal. The identity of the potential
witness is important only if we reverse and remand the district court's ruling on punitive
damages, given that Thompson is seeking the disclosure of this individual's identity as a
potential trial witness on that specific issue. Our decision to affirm the district court on
the punitive damages issue renders the disclosure of the potential witness's identity
unnecessary for our purposes and moots the issue.

For the foregoing reasons, we AFFIRM the district court.

Entered for the Court

Louis F. Oberdorfer

District Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order and judgment is not binding
precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgement may be cited under the terms and
conditions of 10th Cir. R. 36.3.

**. The Honorable Louis F. Oberdorfer,
United States District Judge for the District
of the District of Columbia, sitting by designation.

1. A.W. Williams was dismissed from
these proceedings through a joint stipulation,
and the district court ruled ­ and Thompson conceded ­ that Western Railroad
Builders had been
sued in error. Neither of these parties is participating in this appeal.